Deeplinks Blog posts about Transparency

Fight to Make Documents Public Continues

In December, 2014, EFF asked a court to allow it to intervene in a patent case so that we could formally request that certain documents in the court record be unsealed and made available to the public. Yesterday, EFF’s motion to intervene was granted. Our motion to unseal is now pending.

A federal district court in Pennsylvania recently issued a terrible joint decision in Fields v. City of Philadelphia and Geraci v. City of Philadelphia, holding for the first time that "observing and recording" police activities is not protected by the First Amendment unless an observer visibly challenges police conduct in that moment. The right to record police activities, under both the First and Fourth Amendments, is an increasingly vital digital rights issue. If allowed to stand, Fields would not only hamstring efforts to improve police accountability, but—given disturbing patterns across the U.S.—could also lead to unnecessary violence.

The public has a First Amendment right to access court records, and that right is generally only curtailed when there is “good cause” to do so. Unfortunately, when it comes to patent cases, courts routinely allow [PDF] parties to file entire documents under seal, without any public-redacted version being made available.

The government recently declassified a secret letter, written in 2002 laying out the executive branch’s initial legal justifications for the vast expansion of electronic surveillance after September 11, 2001. Like many others, it was written by former DOJ Office of Legal Counsel attorney John Yoo, and it was directed to the then-presiding judge of the Foreign Intelligence Surveillance Court (FISC), Judge Colleen Kollar-Kotelly.

The letter wasn’t a filing with the FISC: instead, in Yoo’s view, it was more of a “heads up”—in the words of the letter, a gesture of goodwill in the interest of “comity” between co-equal branches of government.

The heads up he was giving? The fact that, for over a year prior to this letter, the executive branch had been flagrantly violating federal surveillance laws.

The Senate’s passage Tuesday of a bill to amend the Freedom of Information Act is a good step toward improving government transparency. Congress, however, can and should do more to fix the 50-year-old federal sunshine law.

Coinciding with Sunshine Week, an annual celebration by journalists and transparency advocates seeking greater government openness, the Senate unanimously passed an amended version of The FOIA Improvement Act of 2015 (S. 337), which was sponsored by Senators Patrick Leahy (D-VT.) and John Cornyn (R-TX.).

EFF supports the Senate bill, particularly because it does not enable greater secrecy for national security agencies, unlike a House bill passed in January. However, the Senate bill does not address several of FOIA’s fundamental problems.